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Update 49: May 4, 2007

1. Yahoo looses copyright lawsuit in China

In the last update, I have mentioned a case against Yahoo China brought by the IFPI because of links to web sites with unlicensed MP3 downloads. In April, a  Beijing court ordered Yahoo! China to pay about 200,000 yuan (26,000 dollars) in damages for assisting downloads of unlicensed music in other websites and delete 229 links to free songs., operator of China's largest search engine, had more luck last year: In a similar case, but under other regulations, the company  wasn't found liable for copyright violations. "The Beijing Court has confirmed that Yahoo China has clear responsibility for removing all links to the infringing tracks on its service," Kennedy, the IFPI's chairman and CEO said in a statement. "Because this is a judgment made under new regulations in China, today's judgment supersedes the previous decision on Baidu and confirms the responsibility of all similar music search providers in China." Yahoo! China plans to file an appeal.

  • April 25, 2007: McDonald, Joe, Chinese court rules against unit of Yahoo in music piracy lawsuit, San Jose Mercury News:
    "A court has ruled against Yahoo's China arm in a lawsuit that accused it of aiding music piracy, the company and a music industry group said Tuesday."

  • April 24, 2007: Yahoo China ordered to curb music links, CNN:
    "A Beijing court has ordered Yahoo China to delete links to free Web sites offering music-downloads and to pay about 200,000 yuan ($27,200) for facilitating distribution of unlicensed songs by other sites, Xinhua news agency reported on Tuesday."



2. Feldman v. Google - AdWords Contract Upheld

According to the U.S. District Court for the Eastern District of Pennsylvania, a forum selection clause in an online contract's terms is acceptable, and will not absolve a party who clicks "I Agree" without taking the time to view the whole agreement as long as it is readily accessible and clear. So the court did uphold Google's mandatory venue provision in its AdWords contract specifying that all lawsuits shall be brought in California. So the click fraud case between Feldman and Google was transferred from Pennsylvania to California. According to Prof. Goldman, this "should inhibit AdWords advertisers from suing Google all over the country. Therefore, all lawsuits will have to be in Google's home court..."


Feldman v. Google, Inc., Decision of March 29, 2007, United States District Court, Eastern District of Pennsylvania


3. Utah SB 236 - No more keyword advertising in Utah?

Utah last month enacted Utah SB 236, the "Trademark Protection Act," a law that effectively prohibits the competitive use of trademarked terms as keyword advertising triggers. The Act establishes a new type of mark called an Electronic Registration Mark. Once a mark is electronically registered, the statute prohibits use of the Electronic Registration Mark to trigger advertising for a business, goods, or services of the same class as those represented by the Electronic Registration Mark.

What happened to lawful competitive advertsising? No wonder, the new law isn't winning any praise. A Google spokesman said Google believes the new law is likely to be challenged in court and struck down as unconstitutional.

After a meeting with senior executives from Google, eBay, Microsoft, America Online, Yahoo, 1-800 Contacts and met, the state has a better idea of who they are up against and now have to decide if the law is worth a legal fight. Rep. David Clark, House majority leader and co-sponsor of the suddenly controversial legislation said after the meeting: "I don't know that we'll repeal it, but we understand we've got some work to do."

4. Google settles suit by AFP

Google Inc has settled a copyright dispute with Agence France-Presse permitting the search engine to post parts of the agency's news and photos onto its Google News site. In its lawsuit, which was filed both in the U.S. and France, AFP had sought damages of at least 17.5 million dollar as well as a court-imposed order barring Google from including its material in Google News.
In a joint statement, the two companies said the settlement allows Google to post AFP content on Google News and other services. Terms of the pact were not disclosed. The deal will let Google use AFP material "in innovative, new ways," AFP said.
Google settled a separate dispute with The Associated Press in August 2006.

  • April 6, 2007, McCarthy, Caroline, Agence France-Presse, Google settle copyright dispute, ZDNet:
    "News agency Agence France-Presse has entered into a licensing deal with Google, ending the dispute between the two over AFP's articles appearing on Google News."

  • April 6, 2007, Modine, Austin, (Agence) France(-Press) surrenders to Google, The Register:
    "News agency Agence France-Presse entered a ménage à deux today with Google en lieu of a $17.5m lawsuit over its news stories appearing on Google News."


5. Google's Data Retention Policy sparks controversy

a. Norwegian Data Inspectorate investigation

“Why do the search engine store the IP addresses [of searchers] for so long and what are they using them for?” The Norwegian Data Inspectorate, an independent administrative body under the Norwegian Ministry of Labour and Government Administration, wants answers and is investigating the data storage policies of a number of search engines, including Google and Norwegian search engines Sesam and Kvasir. The focus is on whether the storage of large quantities of deta related to internet searches is a violation of Norwegian data protection laws.

According to the latest news reports a European Union advisory body has written a letter to Google warning the search giant that its pratices fall short of EU data protection standards. Google confirmed that it received an earlier letter from the Norwegian Data Protection Group. Details were not yet released.


b. Privacy Concerns Surround Proposed Google, DoubleClick Merger

In the USA, three consumer advocate organizations have filed a joint complaint with the Federal Trade Commission (FTC) requesting that the Google/DoubleClick merger be stopped.The complaint asserts that "neither Google or DoubleClick have taken adequate steps to safeguard the personal data that is collected." The complaint says that Google's acquisition of DoubleClick "will give one company access to more information about the Internet activities of consumers than any other company in the world. There is simply no consumer privacy issue more pressing for the Commission to consider than Google's plan to combine the search histories and Web site visit records of Internet users."


c. Google wants to alter data retention policy

According to a March 14 announcement, Google will over the next few months begin to anonymize search data it retains. The plan is to strip parts of IP data from records in order to protect the user’s privacy and reduce the likelihood that the IP address or cookie information can be tied to a particular user.


6. Don't google job applicants in Finland!

All around the world, prospective employers often use search engines to learn things about job applicants that cannot be discerned from the usual routine of resume, interview, and references. All around the world? Maybe no longer in Finland, the country with the strictest privacy laws in the EU! Under the Protection of Privacy in Working Life Act, an employer may collect information on its employees or job applicants primarily from the employees or job applicants themselves. If "other sources" are used, consent from the employee must be obtained.

So the Finnish Data Protection Ombudsman ruled in November 2006 that employers can not use information which is obtained by using Internet search engines, such as Google. The statement was given in response to a job applicant’s complaint that a prospective employer had used a five-year old news group discussion posting found on the Internet to the detriment of the applicant. In the news group discussion posting, the applicant claimed to be mentally unstable. During the job interview, the applicant discovered that  his potential new employer had documents resulting from an Internet search that referred to aspects of his personal life, including his participation in a mental health conference (which he attended as a patient’s representative). However, the information at the employer’s disposal did not clarify the applicant’s status at the conference, leading the employer to believe that the potential employee could have had a mental health disorder.

Also see RoschierRaidla News


7. AdWords lawsuits in the USA - An update

a. Hamzik v. Zale Corp./Delaware, 2007 WL 1174863 (NDNY April 19, 2007)

A federal judge has ruled that the rights of trademark holders may be violated when their terms are used by others as part of the actual ad copy. So the case survived defendant's motion to dismiss.


b. Google, Inc. v. American Blinds & Wallpaper Factory, Inc., C 03-5340 JF (N.D. Cal. April 18, 2007)

U.S. District Court Judge Jeremy Fogel in San Jose, Calif., refused to completely dismiss a lawsuit filed by American Blind & Wallpaper Factory that alleges that Google's AdWords pay-per-click advertising system violates trademark law by allowing rivals of a company to buy ads that appear when people search for information on American Blind & Wallpaper Factory. The ruling granted some claims while rejecting others in Google's motion for summary judgment. "The large number of businesses and users affected by Google's AdWords program indicates that a significant public interest exists in determining whether the AdWords program violates trademark law," Fogel wrote in his decision.

Google, Inc. v. American Blinds & Wallpaper Factory, Inc., C 03-5340 JF (N.D. Cal. April 18, 2007)


8. Google sued for search result

A New Jersey building contractor is suing consumer-complaint site The Rip-Off Report for hosting a customer's negative feedback about him, and he's also going after Google for indexing the criticism and returning it in search results. Chances of success: Probably 0%, because Google is covered by 47 USC 230 for this content!

RSA Enterprises v. Bad Business Bureau, No. 2:07-cv-01882-HAA-ES (D.N.J. complaint filed April 23, 2007)


9. Use of Thumbnail Images not infringing in Germany

According to the District Court of Erfurt (text in German), Google's use of thumbnails in its image search engine does not vialate German copyright law. People who create web sites have a standing interest in getting other people to learn about and visit their web sites. The depiction of thumbnails is thus, in this case, beneficial for the copyright holder, the court wrote. Webmasters who want to restrict access to their content could make use of the robots.txt file.

The decision stands in direct opposition to a 2003 Hamburg court decision (text in German), which said that Google's image search engine violates copyright law because Google has no permission to display the images.

I personally find the Erfurt court decision more compelling. It also reflects my view, expressed in an article, published in the ZUM 2007, pages 119 - 128.


New in Legal Resources

  • Ott, Stephan, Anmerkung zu LG Braunschweig - AdWords, MMR 2007, 123-124

  • Ott, Stephan, Anmerkung zu LG München I - Framing, MMR 2006, 263-264 

  • Ott, Stephan, Zulässigkeit der Erstellung von Thumbnails durch Bilder- und Nachrichtensuchmaschinen?, ZUM 2007, 119-128

  • Verbiest, Thibault / Vandevelde, Bertrand, Liens publicitaires et enchères en ligne: coup dur pour les intermédiaires de l’internet

  • Ruess, Peter, "Just google it?" - Neuigkeiten und Gedanken zur Haftung der Suchmaschinenanbieter für Markenverletzungen in Deutschland und den USA, GRUR 2007, 198-203

  • Plaintiff in Google Page Rank Challenge Hit With Rule 11 Sanctions for Baseless Suit, Electronic Commerce & Law Report 2007, 289-290

  • Google Enjoys First Amendment Right To Exclude Ads it Deems Objectionable, Electronic Commerce & Law Report 2007, 216-217

  • Belgian Publishers Win New Victory in Ongoing Copyright Dispute with Google, Electronic Commerce & Law Report 2007, 177-178

  • German Trial Court Rules That "Framing" Web Content is Infringement, Electronic Commerce & Law Report 2007, 157-158

  • Grogg, Jill / Ashmore, Beth, Google Book Search Libraries and Their Digital Copies

  • Peifer, Karl-Nikolaus, Salomonisches zur Störerhaftung für Hyperlinks durch Online-Mediendienste, IPRax 2006, 246-250

  • Hüsch, Moritz, Anmerkung zu OLG Düsseldorf - AdWords, MMR 2007, 249

  • Efroni, Zohar, Keywording in Search Engines as Trademark Infringement - Issues Arising from Matim Li v. Crazy Line, IIC 2/2007, 204-223




The Links & Law website is updated regularily, so  check back for updated information and resources about search engine and linking issues.

You are currently in the archive with older news. A complete list of the updates can be found here!

Latest News - Update 71

Legal trouble for YouTube in Germany

Germany: Employer may google job applicant

EU: Consultation on the E-Commerce-Directive

WIPO Paper on tradmarks and the internet

The ECJ and the AdWords Cases



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